Day v. Griffith

• Court: Iowa Supreme Court
• Writing for the Court: WRIGHT, J.
• Citation: Day v. Griffith, 15 Iowa 104 (Iowa 1863)
• Decision Date: 06 October 1863
• Parties: DAY v. GRIFFITH

15 Iowa 104

DAY v. GRIFFITH

Supreme Court of Iowa, Des Moines

October 6, 1863

Appeal from Lee District Court.

REPLEVIN for a piano, levied upon by the defendant as Sheriff, under an attachment in favor of Stevens against D. A. Day. The cause was referred to three referees, who found and reported the following facts: On the 1st of February, 1857, D. A. Day executed to plaintiff his promissory note for $ 350, payable in six months. November 11, 1858, said D.A. Day executed to plaintiff (J. H. Day) a bill of sale, conveying, with other property, the piano in question, for the purpose of securing $ 300, with ten per cent (part of said note of $ 350.) This bill of sale was acknowledged and recorded the day of its date. At this time J.H. Day was absent from home. It was executed without his knowledge, and filed for record by the said D. A. Day. Plaintiff had no knowledge of its existence until after the levy of said attachment, which was made January 24, 1859, nor was it accepted until after that time. Prior to the execution of the bill of sale, D. A. Day agreed to give plaintiff security for said note, but no particular property was mentioned or agreed upon. Stevens, the attachment creditor, with a knowledge that said bill of sale was on record, on the day prior to issuing the writ, asked plaintiff if he had any claim or lien on said piano, and he answered that he had not; but at that time plaintiff had no knowledge of the existence of said bill of sale. Stevens relied on this statement in suing out his attachment.

Upon these facts a majority of the referees found, that the said bill of sale had not taken effect at the time of the levy and that defendant should have judgment for a return of the said property, &c. One of the referees held and reported that when the bill of sale was placed in the hands of the recorder for record, it was a delivery in law to the grantee unless be afterwards dissented therefrom. The judgment of the Court confirmed the report of the majority, and plaintiff appeals.

Affirmed.

Rankin & McCrary, for the appellant, relied upon the following authorities: Foley v. Howard, 8 Iowa 56; 2 Kent Com., 6th ed., 454, 455; Verplanck et al v. Steery 12 John. 536; 20 N. H., 140; 72 Mass. 124, 6 Gray 124; 5 Barn. & Cres., 351.

Henry Strong, for the appellee, cited Burrows et al. v. Lehndorff et al., 8 Iowa 102; Maynard v. Maynard et al., 10 Mass. 456; Thayer v. Slark, 5 Law R., 102; Hulick v. Scovil, 4 Gilm. 154; Jackson v. Phipps, 12 John. 418; Ferguson v. Miles, 3 Gill 350; Denton v. Perry, 5 Verm. 382; McGauran v. Haupt, 9 Iowa 83; 1 Par. Cont., 453; Smith v. Moore, 11 N. H., 55.

Hon. CALEB BALDWIN, Chief Justice, Hon. GEORGE G. WRIGHT, Judge, Hon. RALPH P. LOWE, Judge, from December 7 to December 24, 1863. Hon. GEORGE G. WRIGHT, Chief Justice, Hon. RALPH P. LOWE, Judge, from January 1, 1864, to the conclusion of the Term. ^[*]

OPINION

WRIGHT, J.

As applicable to the present controversy, the following general principles were recognized in Foley v. Howard, 8 Iowa 56. Though a mortgage may be handed to the recorder for registry, by the mortgagor, if the mortgagee should subsequently assent to and adopt the same, such adoption, as between the parties to the instrument, may relate back to the time of its execution. Acceptance, by the grantee of a deed, is necessary to a delivery, and when there is no delivery there is no deed. Actual manual delivery is not always necessary, but there must be that which, in legal contemplation, is equivalent thereto. As a rule a party is presumed to assent to a grant which is plainly beneficial to him. And while we still recognize the correctness of these several propositions, we doubt their applicability to the case before us. The two cases are widely different in their actual facts. In the case cited, Foley claimed title under one Ibbotson, an alleged grantee of Michael Howard. To prove title in Ibbotson, complainant (Foley) introduced a certified copy of a mortgage from said Ibbotson to Howard, and from this fact, claimed as a legal and legitimate presumption or consequence, that Howard (who, it was admitted, once held the title) had conveyed to Ibbotson. But Howard denied all knowledge of such mortgage. There was no other proof that he ever conveyed to Ibbotson; nor did it appear who left the mortgage with the recorder, nor that it ever was in the possession of the mortgagee. Howard never accepted or claimed any benefit from the supposed security, but, on the contrary, uniformly repudiated it. In the present case, the mortgagor previously agreed to give security for the plaintiff's debt. The instrument was filed for record by the debtor, without the creditor's knowledge, but accepted by him two months afterwards, and after the levy of the Stevens attachment. The question now to be determined therefore, is whether there had been such a delivery of the bill of sale, at the time of the levy of the attachment, as to vest the property in plaintiff, or, in other words whether his subsequent acceptance of the security can, as against the attachment creditor, relate back to the time of its execution.

In view of the respective rights of the parties to this controversy, we attach but little weight to the prior agreement or promise of D. A. Day, to secure the plaintiff. There was certainly no contract which, as between them, even, could, in equity, have been enforced. A verbal agreement as general and indefinite as this, referring to no specific property, will not be regarded, if a specific performance is sought, and especially so where the rights of third persons intervene. Cole v. Dealham, Garnishee, 13 Iowa 551. If such agreement is to have weight, it is upon the principle, that the subsequent security was, presumptively, at least, beneficial to the creditor, and obviated the necessity of an open positive assent, on his part, to make the delivery effectual and complete, from the time of handing the same to the recorder.

Cases are not wanting to show, that if a deed is left by the grantor with the recorder for record, for the use of the grantee, the subsequent assent of the grantee will relate back, and make the delivery complete from the time of leaving the same for registry. And the same is true when left with any other third person, under the same circumstances. But we have found no case which holds that this assent will relate back to the delivery of the deed to the register, where it is not made for the use of the grantee, the rights of attaching creditors intervening. And though thus delivered for the use of the grantee, but without his knowledge, it is at least doubtful, under the authorities, whether his subsequent assent will relate back to the original deposit, so far as to defeat intervening rights. The maxim is, that relation is a fiction of law, and that it shall do no wrong to strangers. Broom, 54; Jackson v. Bard, 4 John 230. Mr. Washburn, in his late work on Real Property, says: "Although several of the cases seem to sustain the doctrine, that a delivery of a deed to a stranger for the grantee, when it is obviously for his benefit, passes the title at once, as an effectual delivery; the better opinion seems to be that no deed can take effect as having been delivered until such act of delivery has been assented to by the grantee, and he shall have done something equivalent to an actual acceptance of it; and, moreover, the act of delivery and acceptance must, from the nature of the case, be mutual and concurrent acts. Proof of acceptance at a time subsequent to that of the act of delivery, would not be sufficient to give validity to the deed, unless the act of delivery be a continuing one in its nature, such as leaving a deed on deposit, to be accepted by the grantee, at his election." "If the recording of the deed is intended as a delivery and it is known to the grantee, and he assents to the same, it will take effect from the time he so assents." Vol. 2,580, 581.

Thulic v. Scovil, 4 Gilm. 177, cited in a note to the above text and truly said to be a very well considered and ably reasoned case, lays down these rules: "In cases of delivery to a stranger, without authority from the grantee to accept, the acceptance of the grantee at the time of delivery will be presumed under the following concurring circumstances: 1. That the deed be upon its face beneficial to the grantee. 2. That the grantor part entirely with all control over the deed. 3. That the grantor (except in cases of an escrow), accompany delivery by a declaration, intention or intimation, that the deed is delivered for and on behalf and to the use of the grantee. 4. That the grantee has eventually accepted the deed and claimed under it."

In the text of Greenleaf's Cruise, vol. 4, p. 12, it is said that "All deeds, whether deriving their effect from the common law or the statute of uses, except a feoffment, do, immediately upon their execution by the grantors, divest the estate out of them, and put it in the party to whom the conveyance is made, though in his absence, and without his knowledge till some disagreement to such estate appears. This doctrine is founded on the principle, that the assent of the party who takes is implied in all conveyances." In a note, however, it is shown, as we think, most clearly, that this proposition is stated too broadly. The most that can be claimed certainly is, that if the conveyance is absolute and unconditional, or, if not thus absolute, still appears upon its face to be beneficial to the grantee, his acceptance may be inferred. Until the fact that the conveyance is for the interest of the grantee is established, then, either by the instrument itself, or other proof, his acceptance will not be presumed. And, therefore, it is not correct to say, in all...